Citation Nr: 1040281
Decision Date: 10/27/10 Archive Date: 11/01/10
DOCKET NO. 07-00 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia,
Pennsylvania
THE ISSUES
1. Entitlement to service connection for hypertension, to
include as secondary to diabetes mellitus, type II with erectile
dysfunction and to Agent Orange exposure.
2. Entitlement to an increased rating for diabetes mellitus,
type II with erectile dysfunction, currently rated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D.S. Lee, Associate Counsel
INTRODUCTION
The Veteran served on active duty from May 1969 to August 1989.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2006 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania.
In his December 2006 substantive appeal, the Veteran requested
that he be scheduled for a local hearing before a member of the
Board. The Veteran's hearing request was acknowledged by the RO
in a letter mailed to the Veteran in January 2007. A Travel
Board hearing was scheduled to take place in March 2008 at the
Philadelphia RO. Notice of the scheduled hearing was mailed to
the Veteran; however, he did not appear at the scheduled hearing.
The Veteran has not made a request to reschedule the hearing, nor
has he made a renewed request for a hearing.
The issue of entitlement to an increased rating for diabetes
mellitus, type II with erectile dysfunction, currently rated as
20 percent disabling, is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The Veteran did not incur hypertension during his active duty
service or within a one year period after his discharge from
service.
2. The Veteran's hypertension is not etiologically related to
his service-connected diabetes mellitus, type II, to Agent Orange
exposure, or to any other illness or injury incurred during his
active duty service.
CONCLUSION OF LAW
The Veteran's hypertension is not the result of his service-
connected diabetes mellitus, type II with erectile dysfunction or
to Agent Orange exposure during service and may not be presumed
to be; nor was it incurred in or aggravated by service, nor may
it be presumed to have been. 38 U.S.C.A. §§ 1131, 5103, 5103A,
5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Applicable Laws and Regulations
Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection
requires competent evidence showing: (1) the existence of a
present disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between the
present disability and the disease or injury incurred or
aggravated during service. Shedden v. Principi, 381 F.3d 1163,
1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498
(1995). For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to identify
the disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, a showing of continuity of symptoms after discharge
is required to support the claim. 38 C.F.R. § 3.303(b). Service
connection may also be granted for any disease diagnosed after
discharge when all of the evidence establishes that the disease
was incurred in service. 38 C.F.R. § 3.303(d).
Also, certain chronic diseases, including hypertension, may be
presumed to have been incurred during service if manifested to a
compensable degree within one year of separation from active
military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309.
VA regulations also provide that a Veteran who had active
military, naval, or air service in the Republic of Vietnam during
the Vietnam Era (beginning on January 9, 1962 and ending on May
7, 1975) shall be presumed to have been exposed during such
service to an herbicide agent, unless there is affirmative
evidence to establish that the veteran was not exposed to any
such agent during that service. 38 U.S.C.A. § 3.307(a)(6)(iii).
Although the evidence in this case shows that the Veteran served
in Vietnam during the prescribed period and he is thereby
presumed to have been exposed to Agent Orange, service connection
may not be presumptively granted for hypertension due to Agent
Orange exposure. See 38 C.F.R. § 3.307(a)(6)(ii); 3.309(e).
Additionally, disability which is proximately due to, or results
from, another disease or injury for which service connection has
been granted shall be considered a part of the original
condition. 38 C.F.R. § 3.310(a). Any increase in severity of a
nonservice-connected disease or injury that is proximately due to
or the result of a service-connected disease or injury, and not
due to the natural progress of the nonservice-connected disease,
will be service connected. However, VA will not concede that a
nonservice-connected disease or injury was aggravated by a
service-connected disease or injury unless the baseline level of
severity of the nonservice-connected disease or injury is
established by medical evidence created before the onset of
aggravation or by the earliest medical evidence created at any
time between the onset of aggravation and the receipt of medical
evidence establishing the current level of severity of the
nonservice-connected disease or injury. 38 C.F.R. § 3.310(b);
see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
II. Service Connection for Hypertension
In his February 2006 claim, the Veteran contends that he has a
current disability due to hypertension, secondary to his service-
connected diabetes mellitus. In a March 2006 statement, he
advises that he was informed by a VA treating physician that his
hypertension was caused by his diabetes. Alternatively, he
asserts that his hypertension was incurred secondary to exposure
to Agent Orange during service. As discussed above, service
connection for hypertension may not be presumptively granted
based upon exposure to Agent Orange.
Service treatment records are negative for diagnosis or treatment
of hypertension. A May 1989 separation examination report
reflects a blood pressure reading of 132/84. Similarly, the
evidence does not show diagnosis or treatment of hypertension
within a year from his discharge from service.
Overall, post-service VA treatment records reveal multiple blood
pressure readings from January 2001 to October 2006 that
consistently indicate systolic readings (the top value of a blood
pressure reading) below 160 millimeters and diastolic readings
(the bottom value of a blood pressure reading) consistently below
90 millimeters. The Board notes, however, isolated blood
pressure readings of 178/88 taken in May 2002 and of 160/82 taken
in June 2006.
At a March 2006 VA examination, the Veteran reported that he had
been having borderline hypertension for the last five years and
was started on hypertension medication, called lisinopril, two
years before. According to the Veteran, his hypertension was
well-controlled. Three blood pressure readings taken at the
examination revealed separate readings of 153/73, 140/75, and
156/80. Laboratory testing revealed normal microalbumin, blood
urea nitrogen, and creatine levels. The VA examiner provided a
diagnosis of hypertension, but opined that the normal laboratory
results support the conclusion that the Veteran's hypertension
"is not as likely as not secondary to diabetes."
The Board notes that the evidence does not establish an
etiological relationship between the claimed hypertension and his
service-connected diabetes mellitus, type II, Agent Orange
exposure during service, or directly to his active duty service.
As noted previously, the service treatment records do not
indicate the in-service incurrence of hypertension. Indeed, the
Veteran does not expressly make any assertions in that regard.
With regard to the question of whether the claimed hypertension
is etiologically related to the Veteran's service-connected
diabetes mellitus, type II or to Agent Orange exposure, the post-
service VA treatment records are silent in that regard. Also,
the VA treatment records do not support the Veteran's contention
that he was advised of such an etiological relationship by a VA
treating physician. Such contentions are also rebutted by the VA
examiner's conclusions, which are supported by clinical and
laboratory findings as well as other evidence of record.
Regarding the Veteran's lay contentions as to an etiological
relationship between his hypertension and to his service-
connected diabetes mellitus, type II and Agent Orange exposure,
the Board recognizes that lay evidence may be competent and
sufficient to establish a diagnosis or medical etiology when:
(1) a layperson is competent to identify the medical condition;
(2) the layperson is reporting a contemporaneous medical
diagnosis; or (3) the lay testimony describing symptoms at the
time supports a later diagnosis by a medical professional.
Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009). The question
of whether lay evidence is competent and sufficient in a
particular case is a fact issue to be determined by the Board.
Jandreau, 492 F.3d at 1377.
In addressing the Veteran's contentions, the Board first notes
that the Veteran has not been shown to possess the requisite
medical training, expertise, or credentials needed to competently
render either a diagnosis or etiology opinion as to hypertension.
As indicated in 38 C.F.R. § 4.104, Diagnostic Code 7101, a
diagnosis of hypertension must be based upon blood pressure
readings, not visible symptomatology. See also Layno v. Brown, 6
Vet. App. 465, 470 (1994) (a veteran is competent to report that
on which he or she has personal knowledge); Bostain v. West, 11
Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of opining
on matters requiring medical knowledge"). Moreover, the
Veteran's contentions are not supported by evidence establishing
a medical professional's opinion that the Veteran's hypertension
is related to his service-connected diabetes mellitus, type II or
to Agent Orange exposure. Accordingly, the Veteran's contentions
are neither competent nor sufficient to establish an etiological
relationship between his hypertension and diabetes mellitus, type
II, Agent Orange exposure, or directly to his active duty
service.
Overall, the preponderance of the evidence is against the
Veteran's claim for service connection for hypertension, to
include as secondary to diabetes mellitus, type II with erectile
dysfunction and Agent Orange exposure, and this claim must be
denied. In reaching this determination, the Board acknowledges
that VA is statutorily required to resolve the benefit of the
doubt in favor of the Veteran when there is an approximate
balance of positive and negative evidence regarding the merits of
an outstanding issue. Here, the preponderance of the evidence is
against the Veteran's claim insofar as the issue of whether the
Veteran's hypertension is etiologically related to his service-
connected diabetes mellitus or directly to his active duty
service. Accordingly, the benefit of the doubt doctrine will not
be applied to the question of etiology. See Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).
III. Duties to Notify and Assist
VA's duties to notify and assist claimants in substantiating a
claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his or
her representative, if any, of any information, and any medical
evidence or lay evidence that is necessary to substantiate the
claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance
with 38 C.F.R. § 3.159(b)(1), proper notice must inform the
claimant of any information and evidence not of record (1) that
is necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
Notice should be provided to a claimant before the initial
unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
Compliant notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by the
agency of original jurisdiction (in this case, the RO and the
AMC). See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003). However, the notice requirements
may, nonetheless, be satisfied if any errors in the timing or
content of such notice are not prejudicial to the claimant. Id.
In the present case, the Veteran was notified of the information
and evidence needed to substantiate and complete a claim for
service connection for hypertension, to include as secondary to
diabetes mellitus, type II with erectile dysfunction and to Agent
Orange exposure, in a March 2006 notice letter. Following a
reasonable period of time in which the Veteran was afforded an
opportunity to respond to that letter, the Veteran's claim was
adjudicated for the first time in a June 2006 rating decision.
Any deficiencies of notification that a disability rating and an
effective date for the award of benefits are assigned in cases
where service connection is warranted are not prejudicial, as the
Veteran's claim is being denied. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
In addition, VA has fulfilled its duty to assist in obtaining
identified and available evidence needed to substantiate a claim.
The Veteran's service treatment records and identified VA and
private treatment records have been obtained. Additionally, he
was afforded a VA examination in March 2006 to determine the
nature and etiology of his hypertension.
Overall, there is no evidence of any VA error in notifying or
assisting the Veteran that reasonably affects the fairness of
this adjudication.
ORDER
Service connection for hypertension, to include as secondary to
diabetes mellitus, type II with erectile dysfunction and to Agent
Orange exposure, is denied.
REMAND
At his most recent March 2006 VA examination, the Veteran
reported that he was working on a part time basis as a
salesperson, half days and five days a week. Despite the
Veteran's reported impairment with employment, the examiner does
not render an opinion as to whether the Veteran's diabetes
mellitus and associated peripheral neuropathies of the bilateral
upper and lower extremities have impaired his ability to obtain a
substantially gainful occupation.
A June 2006 VA treatment records reflects that the treating
physician's opinion that the Veteran's diabetes mellitus, type II
and associated neuropathies have caused the Veteran to restrict
the number of hours in which he works. A statement from the
Veteran, also provided that month, also asserts that his diabetes
mellitus, type II was preventing him from being able to work on a
full time basis.
The Court has held that a request for a total disability rating
due to individual employability resulting from service-connected
disability (TDIU), whether expressly raised by a veteran or
reasonably raised by the record, is not a separate claim for
benefits, but is rather part of the adjudication of a claim for
increased compensation. Rice v. Shinseki, 22 Vet. App. 447
(2009). Thus, when entitlement to TDIU is raised during the
appeal of a rating for a disability, it is part of the claim for
benefits for the underlying disability. Id at 454. The
foregoing evidence reasonably raises a request for consideration
for TDIU in this case.
For the reasons expressed below, the Board finds it is necessary
to remand the Veteran's claim for an increased rating for
diabetes mellitus, type II with erectile dysfunction for further
development. The RO's determination following remand may affect
the Veteran's total disability rating pursuant to 38 C.F.R.
§ 4.16(a), and hence, may substantially affect the question of
whether the Veteran is entitled to TDIU. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are
"inextricably intertwined" when they are so closely tied together
that a final Board decision on one issue cannot be rendered until
the other issue has been considered).
Initially, the Board observes that there is no documentation in
the claims file that suggests that the Veteran was properly
notified of the evidence necessary to substantiate a claim of
entitlement to TDIU. Notice in that regard should be provided to
the Veteran.
Documentation in the claims file shows that VA has obtained the
Veteran's VA treatment records through October 2006. Efforts
should be made to contact the Veteran to ascertain the names and
addresses of any private or VA medical treatment providers who
have rendered treatment since October 2006. If such treatment
providers are identified by the Veteran, then efforts should be
made to obtain the corresponding treatment records in a manner
consistent with 38 C.F.R. § 3.159(c)(1) and (c)(2).
Further, the Board notes that it has been more than four years
since the Veteran's most recent VA examination to assess the
severity of his disability stemming from diabetes mellitus, type
II with erectile dysfunction. Accordingly, the Veteran should be
scheduled for a new VA examination to assess the present
severity. In conducting the examination, the VA examiner should
not only examine the present severity of the Veteran's disability
attributable to diabetes mellitus, type II, but should also
provide an opinion as to whether the Veteran's disability has
impaired his ability to pursue and maintain a substantially
gainful occupation.
After the development action outlined above has been performed,
the RO should readjudicate the Veteran's claim for an increased
rating for diabetes mellitus, type II with erectile dysfunction.
In readjudicating that claim, the RO should also consider whether
the Veteran is entitled to TDIU pursuant to 38 C.F.R. § 4.16(a)
and (b). In view of the evidence indicating interference with
employment due to the Veteran's disability attributable to
diabetes mellitus, type II, the RO should also consider whether
proceedings consistent with 38 C.F.R. § 3.321(b) are in order for
consideration of the assignment of an extraschedular disability
rating.
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with a letter
explaining, in terms of 38 U.S.C.A. §§ 5103
and 5103A, the need for additional evidence
regarding his claim for an increased rating
for diabetes mellitus, type II with
erectile dysfunction, currently rated as 20
percent disabling. This letter must inform
the Veteran about the information and
evidence that is necessary to substantiate
his claim for an increased rating and for
TDIU. The letter should also provide
notification of both the type of evidence
that VA will seek to obtain and the type of
evidence that is expected to be furnished
by the Veteran.
The Veteran should also be provided a VA
21-4142 release and requested to provide
the name(s) and address(es) of any private
or VA medical treatment providers who have
rendered treatment since October 2006.
2. After securing any necessary release
forms, with full address information, all
records of medical treatment which are
identified by the Veteran and not
currently associated with the claims file
should be requested. All records obtained
pursuant to this request must be included
in the claims file. If the search for
such records yields negative results,
documentation to that effect should be
included in the claims file.
3. Then, the Veteran should be afforded a
VA medical examination, with an appropriate
examiner, to determine the symptoms and
severity of his diabetes mellitus, type II
with erectile dysfunction. The Veteran's
claims file should be made available to the
examiner prior to the examination, and the
examiner is requested to review the entire
claims file in conjunction with the
examination.
All tests and studies deemed necessary by
the examiner should be performed. In
discussing the relevant clinical findings,
the examiner should specifically note
whether the Veteran requires insulin,
restricted diet, regulation of activities,
and/or oral hypoglycemic agents to manage
his condition. The examiner should also
specifically note whether the Veteran has
experienced episodes of ketoacidosis or
hypoglycemic reactions that have required
hospitalizations or visits to a diabetic
care provider, plus progressive loss of
weight and strength or any other
complications (i.e., erectile dysfunction
or neuropathy, and their severity. The
examiner should note the frequency of such
hospitalizations and/or visits with a
diabetic care provider. The examiner must
also offer an opinion as to whether the
Veteran is able to secure or follow a
substantially gainful occupation. If
this question is answered in the negative,
the examiner should more specifically
address whether the Veteran is precluded
from securing or following a substantially
gainful occupation solely as a consequence
of his diabetes mellitus, type II.
A complete rationale should be given for
all opinions and conclusions rendered.
Such rationale should include a discussion
of relevant evidence in the claims file,
including the Veteran's lay statements and
VA and private treatment records. All
findings, opinions, and supporting
rationale should be expressed in a
typewritten report.
4. After completion of the above
development, the Veteran's claim of
entitlement to an increased rating for
diabetes mellitus, type II with rated as
20 percent disabling, should be
readjudicated. Consistent with the Rice
case, such readjudication should also
consider the issue of whether the Veteran
is entitled to TDIU pursuant to 38 C.F.R.
§ 4.16. Also, the RO should consider
whether action pursuant to 38 C.F.R.
§ 3.321(b)(1) for consideration of an
extraschedular rating for diabetes
mellitus, type II with erectile
dysfunction is warranted by the evidence.
If the determination as to either issue
remains adverse to the Veteran, he and his
representative should be furnished with a
Supplemental Statement of the Case (SSOC)
and given an opportunity to respond.
The Veteran has the right to submit additional evidence and
argument on this matter. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs